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May 18, 2020 | 10:2127 Views

Vetting the “Armenian Way”: The Judiciary will Vet the Judiciary

On May 20, 2019, one year after the “Velvet Revolution”, Prime Minister Nikol Pashinyan called for massive blockades of courts as a sign to start “surgical interventions” in the judicial system notorious for being one of the most corrupt systems in Armenia. A road map of 5 actions was declared, including introduction of a vetting system and mechanisms of transitional justice as urgent and radical measures (“if need be, through constitutional changes” and “referenda” as he said).

No constitutional changes were called for. Within only one year, ideas for true vetting and transitional justice vaporized, with radical changes substituted with “gradual reforms” and a new Judicial Code. Minister of Justice Roustam Badasyan calls this “vetting the Armenian way” wherein new commissions will be set up that will monitor the good conduct of judges and their income declarations of recent years. If these bodies identify violations, they will appeal to the Higher Judicial Council and if necessary, to the Prosecutor’s office. These will be incremental changes, but the Minister is confident that if the new monitoring commissions are “established and function properly”, then the system will be gradually reformed. “If we see that nothing works and the monitoring of the judicial system is as in the past, then we can initiate Constitutional changes and adopted a successful international vetting practice,” promises Badasyan. Prime Minister Pashinyan reacts: “So we don’t take the scythe and mow everything everywhere, we give the systems a chance for them to resolve their issues.”

This is just a small portion of the streamed conversation between Minister Badasyan and Prime-Minister Pashinyan on the “vetting the Armenian way.” Badasyan, a young career specialist with a track record of a tax law attorney defending large corporate tax interests, was appointed to the post of Minister in June 2020. Before that, he used to work for “Concern Dialog” law firm.

In the streamed conversation, Badasyan was effectively justifying the lack of vetting in the judiciary system “reforms” contrary to large expectations. The Albanian vetting model, initially similar to what Pashinyan declared in May 2019, would pose significant anti-constitutional and international law challenges, claims Badasyan. This would have meant total and immediate vetting of all judges, which, however, would require constitutional changes. If Armenia was to emulate Albania, it would have to change the Constitution, establish a special body equal to a judicial one, create another body as an appeals institution to the first one. Aside from constitutional challenges, this would pose a system-related threat, claims Badasyan. In Albania, for example, as a result of vetting, one 1 supreme court judge out of 19 was left, and only 3-4 judges in the Constitutional Court, which was not enough for judicial deliberations. So, the judicial system was either too fragmented or not functional at all.

Pashinyan – So, how are we going to get rid of bad judges?

Badasyan – What’s more important is who will be recruited into the judicial system and not who will leave it.

Changing existing judges is a challenge for Armenia due to the insufficient number of candidates. There are a total of 244 judges in Armenia, of which 183 judges in the first instance court, 44 in Appeals Court and 17 in the Court of Cassation. There are currently 7 vacancies. In the past 2 years, only 30 lawyers passed the judge qualification exam and attended the Justice Academy. Overall, there are 30 specialists in all of Armenia, who can claim for the vacant positions of judges. Of these specialists, only 6 are specialized in criminal law. Such a number of reserve specialists is too low for radical reforms and staff changes.

Badasyan believes that the government needs to make this system attractive for newcomers. In the coming three years, the salaries of judges will need to increase incrementally by ultimately 70 percent starting with 50 percent in 2020. The first instance court judge currently receives 661.000 AMD monthly, including taxes, 727.000 AMD is paid to Appeals Court judges and 760.000 AMD to Cassation Court judges (all including taxes). Badasyan also proposes to cut down documentation in courts and incorporation of digitalized systems to relieve the workload of judges. This, he claims, will make preconditions for the system to accept new (“good”) judges.

In parallel to this, the new Judicial Code will start to operate new mechanisms by which “bad” judges will be gradually screened out.

As for vetting through income declarations, judges will hereinafter submit their income declarations not to the Ethics Committee, but to Corruption Prevention Commission. This commission is endowed with powers to access financial data and therefore can cross-check the income declarations. If suspicious income is identified, the Corruption Prevention Commission will report to the Supreme Judicial Council for the latter to initiate disciplinary proceedings or to the Prosecutor’s office.

Judges, as in the past, will be appointed and fired by the Supreme Judicial Council. Transitional provisions provide that Council members are supposed to be “vetted” first.

Badasyan also presented that a Commission will be set up to evaluate the work of judges, the extent to which judges maintain reasonable terms of trial, whether verdicts are justified, whether judges maintain good conduct and ethics. Based on these, the Commission will prepare lists of judge advancement and will consider issues of training. If problems are identified, the Commission will turn to a new Ethics and Disciplinary Committee in the making, which, if necessary, can send a motion to the Supreme Judicial Council.

In sum, “vetting the Armenian way” will have three tools – Corruption Prevention Commission; Judge Evaluation Committee; Ethics and Disciplinary Committee. The first institution is independent, the latter two are part of the judiciary. “It is the judicial system that will handle improvement of the system by ensuring its independence. The role of the executive branch will be made minimal,” claims Badasyan.

Civil society organizations had earlier released a statementcondemning this approach to the expected vetting reforms. Chairperson of “Asparez Journalists’ Club”, Levon Barseghyan, after repeated attempts to push for transitional justice and vetting reforms, has resorted to political sarcasm, calling Minister Badasyan “head of the government special committee on vetting reform funeral procession.”

Attorney Norayr Norikyan, reacted on his Facebook page addressing Prime Minister Pashinyan that this is yet another of his personal defeats of the revolution. It is a fatal defeat that none of the goals declared by Pashinyan in 2019 will be reached; none of the current judges will be vetted for their current and past work, current political and related ties (conflicts of interest) [only new candidates will be vetted]; none of the judges who made verdicts by which the state of Armenia suffered shameful defeats at the European Human Rights Court will resign; no judge that believes they cannot function in an unbiased manner will resign; no transitional justice mechanisms will be adopted and the Parliament has not dealt with this vital issue using its legislative powers.

MP Arman Babajanyan, who was elected as part of the Bright Armenia Party, but dropped out of the fraction, assessed the vetting process as “a complete failure” by the Ministry of Justice. In a parliamentary session on May 12, he said: “Justice Minister Roustam Badasyan was doing his utmost best to prove Prime Minister Pashinyan at the discussion yesterday, why and how it is impossible to carry out comprehensive vetting of judges in Armenia, why genuine and not formalistic good conduct rules will not be applied that would make the current judges different from the previous ones.

Roustam Badasyan set a record yesterday on how to convince a revolutionary leader that the right thing are not revolutionary changes, but maintenance of all the things against which the revolution was waged. And this is against the expectation of listening to a performance report of what has been done in the past 1 year to reach vast judicial reforms. Prime Minister Pashinyan gave this task exactly one year ago. Instead, we heard how the Justice Minister was reporting to the Prime Minister that accomplishment of tasks given by him has been completely failed.

Roustam Badasyan, claimed yesterday, that we should forget real vetting, real transitional justice and good conduct for good, because, according to him, everything – the Constitution, the Venice Committee, every everything possible is an impediment to this goal.”